How El Salvador’s Supreme Court Is Undermining Democracy—With Washington’s Help

WikiLeaks has exposed US government collusion with the chamber’s destabilization strategy.

August 8, 2015

El Salvador's President Salvador Sánchez Cerén, left, Guatemala's President Otto Pérez Molina, U.S. President Barack Obama, and Honduran President Juan Hernandez meet in the White House Friday, July 25, 2014, (AP Photo)

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On July 20, 2015, the government of El Salvador issued an official warning that right-wing forces are orchestrating “a movement for a coup d’état,” against the “government of the people, a legal government, a legitimate government that fights every day for the interests of the population.”

It’s not the first time allegations of coup-plotting have arisen lately in the small Central American republic. Two months after the March 1 mid-term elections, El Salvador found itself without a legislature. In an unprecedented move, the Supreme Court’s constitutional chamber had suspended the swearing-in of the newly elected representatives pending a recount, effectively shutting down an entire branch of government. The current president of the National Legislative Assembly called the action a “technical coup d’état.” The US Embassy called it “institutionality.”

The past several weeks in El Salvador have seen the escalation of a series of tactics that state officials and activists have deemed part of a “soft coup” strategy against the country’s democratically elected progressive government. Since the 2014 inauguration of leftist President Salvador Sánchez Cerén, a spike in gang-related homicides has strained state resources, in what Police Chief Mauricio Landaverde has called a deliberate campaign ordered by gang leaders to increase murder rates with possible political motives. Earlier this month, a group of armed soldiers in uniform rallied to demand greater compensation; military leadership disavowed their actions and charged fourteen of them with sedition. Last week, gang threats against bus drivers caused the suspension of dozens of mass-transit routes throughout the San Salvador metropolitan area, which officials deemed an act of “sabotage” against the population. Right-wing groups have circulated calls on social media for the president’s resignation, and the country’s conservative mass media’s onslaught against the governing party contributes daily to a climate of insecurity.

In fact, plans to undermine leftist governance in El Salvador go back years before the election of Sánchez Cerén, the first guerrilla leader of the leftist Farabundo Martí National Liberation Front (FMLN) party to become president of El Salvador. The strategy centers on the country’s Supreme Court—and the US government has been in on it from the beginning.

After President Obama’s January proposal to provide $1 billion in aid to Central America to purportedly help stem the tide of irregular migration to the United States, the debate in Congress has pivoted around concerns about the “rule of law,” “institutionality,” and “good governance” in what is called the Northern Triangle of the Central American isthmus: Guatemala, Honduras, and El Salvador. US foreign policy in the region, however, suggests that those terms mean something very different to the State Department. Washington’s support for repressive, anti-democratic governments in Honduras and Guatemala provides the most explicit examples. But in El Salvador, US advocacy for “institutionality” has taken a truly Orwellian turn, where escalating Supreme Court attacks against both the executive and legislative branches are actively undermining governance, with full US support.

El Salvador’s nascent democracy has only just emerged from decades, even centuries, of repressive military and oligarchic rule. The 1992 Peace Accords, which brought an end to a brutal 12-year civil war, were followed by twenty years of US-backed administrations by the right-wing Nationalist Republican Alliance (ARENA) party, governments marked by devastating economic liberalization and rampant corruption. But in 2009, a progressive journalist, Mauricio Funes, was elected president on a ticket with the leftist FMLN, marking the nation’s first-ever progressive administration. In 2014, the left again secured the presidency, this time with FMLN former guerrilla commander Sánchez Cerén as its candidate.

The ousting of the oligarchic right from power constituted an extraordinary step forward for democracy in El Salvador. In addition to groundbreaking social programs that have expanded the poor majority’s access to quality healthcare and education services, sweeping institutional reforms have also been implemented. The nation’s electoral process has become more transparent and accessible; measures include a residential voting system, which opened thousands of new community voting centers, and an absentee voting system for Salvadorans abroad. A new Access to Public Information Law has established the Access to Public Information Institute, charged with facilitating citizen requests for government information. In addition, massive multimillion-dollar corruption scandals from previous administrations were uncovered, and dozens of former officials, including an ex-president, have faced prosecution for misuse of public funds.

Unsurprisingly, the merit of these democratic achievements was largely lost on El Salvador’s notoriously recalcitrant elite and its US allies, accustomed as they were to using state coffers as a personal piggy bank and auctioning off the country’s natural resources and workforce for transnational exploitation with impunity.

For years, El Salvador’s reactionary mass media had trumpeted US threats that the election of a leftist government would mean catastrophe for diplomatic relations: In previous elections, State Department officials and members of Congress threatened to cut off crucial remittances from Salvadoran immigrants to their families and even to deport Salvadorans from the United States should the FMLN triumph at the ballot box. But unlike in neighboring Honduras, where Washington openly supported a military coup against democratically elected President Manuel Zelaya in 2009, the United States has chosen a softer strategy in El Salvador. While maintaining amicable diplomatic relations with the FMLN administrations, Washington worked with its allies in El Salvador to impose institutional and economic policy reforms that would tie the hands of current and future Salvadoran administrations, limiting the government’s ability to implement structural changes that could challenge a neoliberal, pro-corporate agenda. At the same time, through USAID funding and public encouragement, Washington has fomented destabilizing local forces seeking to impede successful leftist governance.

“Samayoa told us of a ‘Plan B’ in the works to insulate El Salvador from (leftist) FMLN mischief…" —US Ambassador

Enter the Supreme Court. The Salvadoran right wing, terrified of losing the power it had abused for so long, turned to a new strategy, one that Washington was keenly aware of.

In 2008, on the eve of the 2009 presidential elections, then–US ambassador to El Salvador Charles Glazer sent a cable (later released by WikiLeaks) to the State Department in Washington, relaying information shared with him by Salvador Samayoa, a former FMLN leader who had become a right-wing analyst. Ambassador Glazer wrote: “Samayoa told us of a ‘Plan B’ in the works to insulate El Salvador from (leftist) FMLN mischief should Mauricio Funes win the March 2009 election. The draft plan is reportedly focused on preventing a catastrophic (conservative, pro-U.S.) ARENA loss in the Legislative Assembly, early selection of Supreme Court magistrates by the current Assembly, and legislative strengthening of existing Salvadoran institutions before the 2009 elections.” The cable continues: “[a] significant component of the plan would focus on control of key institutions, including the Supreme Court and Armed Forces. Concerning the Court, Samayoa noted that five justices must be replaced by July 1, 2009, four of whom sit in the constitutional chamber of the Court.… they believe electing the new magistrates is achievable.” The ambassador closes by noting, “The fact that they are taking a long view and attempting to fireproof El Salvador from feared FMLN mischief is reassuring.”

The State Department’s worst fears were realized: The FMLN won the historic 2009 elections. As promised, the Salvadoran right commenced Plan B, and as recent Supreme Court interventions have shown, the strategy is working quite well. The Constitutional Chamber of the Supreme Court, whose magistrates were elected in 2009 by an ARENA-dominated Legislative Assembly, has constituted one of the strongest challenges to the implementation of the government’s platform and to the FMLN’s rising political power.

Since their election, four of the chamber’s five magistrates—known popularly as the “Fantastic Four” for their unprecedented interventions into national politics—have ferociously defended the financial interests of the wealthy elite. In February 2014, the magistrates deemed unconstitutional a motor-vehicle tax that was used to aid victims of traffic accidents; in November 2014, they suspended an initiative proposed by President Sánchez Cerén incentivizing the payment of hundreds of millions in back taxes owed to the state; in April 2015, the Fantastic Four ruled against a 1 percent minimum income tax passed under the FMLN. Most recently, in June the chamber delivered a shattering blow to the Sánchez Cerén administration by freezing $900 million in government bonds that had been approved by the Legislative Assembly to fund social programs and provide crucial security support in the face of rising gang violence. “It appears that the Constitutional Chamber wants to tie the government’s hands economically,” warned President Sánchez Cerén following the chamber’s decision to suspend access to the bonds. “Their actions are more ideological, and they respond to the country’s dominant groups and to the interests of the ARENA party.”

These actions, which undermine the FMLN administration’s success by defunding it, starkly demonstrate the magistrates’ political allegiances. But their politics were also laid bare over the course of the 2015 mid-term elections, in which they brazenly overstepped their jurisdiction. With complete disregard for the Supreme Electoral Tribunal, by law the country’s maximum electoral authority, the chamber imposed a series of drastic, last-minute changes to the country’s voting system in the months and even days before polling. The changes were aimed at eroding the strength of political parties in the wake of consecutive FMLN electoral victories that have consolidated the left while weakening the right-wing opposition. But they also sowed confusion among voters and fomented mistrust of the Electoral Tribunal, and by extension, the FMLN government, which was blamed by the country’s conservative media for the inevitable delays and other difficulties in the electoral process generated by the chamber’s decisions. This destabilizing dynamic became especially clear when the chamber ordered a ballot recount and prohibited the incoming legislature from assuming office, pending the results. It was in the midst of this post-electoral turmoil that the Legislative Assembly president accused the magistrates of enacting a technical coup against the government.

The US Embassy, however, strongly supports the Supreme Court. This is no surprise, given WikiLeaks revelations of the embassy’s knowledge of right-wing plans to take back the executive from the FMLN. In 2013, the Fantastic Four ousted the presiding magistrate of the Constitutional Chamber and the court’s lone progressive in one of their most controversial—and illogical—rulings to date, in which they declared that magistrates could have no direct affiliations with political parties. When the ruling drew an outcry across various branches of government, US Ambassador Mari Carmen Aponte openly threatened millions of dollars in Millennium Challenge Corporation development aid, declaring publicly, “Certainly the rule of law and the strength of institutions are some of the criteria that the Millennium Challenge Corporation takes into account when making important decisions.… We have been clear that the Constitutional Chamber’s decisions should be respected for the good of the country’s institutionality.” Aponte routinely occupies national headlines with her defense of the Fantastic Four, with assertions such as “Respect for the rule of law is very important” and veiled threats like, “for now [the chamber’s] rulings are being respected, and that is very important for us.” Of course, the embassy made no such appeals to the rule of law when the chamber overturned new tax reforms approved by the legislature, or when it trampled the Supreme Electoral Tribunal in order to undermine free and fair elections.

Despite the US discourse of institutionality and rule of law, the Salvadoran Supreme Court’s dramatic transformation from defenders of the Constitution to active policy makers (and breakers) has endangered the country’s system of checks and balances. The Fantastic Four’s reckless incursions into the legislative and executive domain threaten the democratic institutions that Salvadorans sacrificed so much to build. Far from the rule of law, the chamber’s actions are part of a well-planned destabilization strategy—designed with full US knowledge and support—to re-establish inequality, political repression, and impunity in El Salvador.

Cynical embassy doublespeak must not be allowed to mask the State Department’s true intentions in the region. As Obama and Congress talk institutions, we need to look beyond the rhetoric and recognize the priority that has always guided US foreign policy: locking down the perpetuation of systems that generate profit for an elite few, to the exclusion of a historically marginalized majority.

Hilary GoodfriendHilary Goodfriend is a researcher currently living in San Salvador. A New York University graduate in Latin American Studies, she is currently completing a master’s thesis at the Central American University (UCA) in San Salvador.